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March 20, 2007

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JFC

In Massachusetts records of domestic violence restraining orders may never be expunged, Vaccaro v. Vaccaro, 425 Mass. 153 (1997), except when the record causes a lawyer to have difficulty getting her preferred job, Commissioner of Probation vs. Amanda Adams, 65 Mass. App. Ct. 725 (2006).

S. COTUS

First of all, I think it is ridiculous that DV restraining orders “can’t be expunged.” People can get them pretty easily. Secondly, as a constitutional matter this actually makes sense. Third, the Mass case hinged on a “fraud on the court” theory.

State courts would naturally have much more jurisdiction than Federal Courts of supposedly “limited” jurisdiction. The First didn’t address the “Fraud on the Court” issue, (which the Massachusetts courts did), but maybe the result would be different. Not sure.

Their Mass court’s rhetoric is interesting, “Law enforcement officials will not be notified that the order was vacated because it was obtained by fraud on the court. Rather, they may presume it was vacated because of the victim's failure to prosecute or because of insufficient evidence. The perpetuation of a fraud amounts to a defiling of the court itself when law enforcement officials rely on inaccurate information produced by the court.” So, in Adams, the court concluded, “We therefore conclude that a judge has the inherent authority to expunge a record of a 209A order from the Statewide domestic violence registry system in the rare and limited circumstance that the judge has found through clear and convincing evidence that the order was obtained through fraud on the court.”

The earlier case, Vaccaro, didn’t involve any “fraud on the court.”

But whatever the case, maybe it is just enough to say that some people have more important careers than others.

GHV

In Massachusetts now as in 1692 an allegation is proof of it’s own validity. An exparte order has permanent probative value. In Vaccaro v. Vaccaro, 425 Mass 153 (1997), the plaintiff a practicing attorney obtained the exparte order of protection (MA Ch 209A) from a judge she knew personally with an unsigned affidavit. After a full trial on the merits where the plaintiff was unable to substantiate any of the numerous allegations she made, the district court judge said he was unable to continue the order because the plaintiff who appeared genuinely fearful was “unreasonable”. There was no finding of “fraud on the court” regarding the plaintiff attorney who practiced regularly in the same court. The district court in another session was willing to expunge the defendant's name from the MA Domestic Violence Database. The Department of Probation, part of the trial court in MA was inserted(not intervened) as a party in the original action to warn the judiciary not to exercise any "inherent authority" in the area of DV. If there is a fraud being perpetuated it is being done by the State who records protection orders only as “opened” or “closed” regardless of the reason the order is vacated. Presumably this is to to keep Battered Women's Syndrome viable. For a few bytes of computer space the disposition of the DV hearings could be recorded accurately and provide a meaningful record but apparently this is not part of the scheme. The MA SJC has been willing to undercut justice in the greater interest of social justice.

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